Unchecked and unbalanced in North Carolina

The Supreme Court ruling that upheld the Affordable Care Act has many of us talking about checks and balances, so let’s use this teachable moment to examine how separate branches of North Carolina’s government have left its first virtual charter school in limbo.

The North Carolina Board of Education simply ignored a law it didn’t like.

A Wake County Superior Court judge ruled Friday that the North Carolina Virtual Academy can’t open this fall because the state’s Board of Education never said it could. The academy had won preliminary approval from the county school board where it would have been based, but Judge Abraham Penn said that ultimate approval lies with the state board.

The problem—one that even Judge Penn acknowledges—is that the state board refused to even consider the academy’s legitimate application. And this is where governance in the Tar Heel State breaks down.

When North Carolina’s 2011 legislative session ended in the summer of that year, lawmakers lifted the cap on the number of charter schools in the state and allowed for the creation of virtual charters. Months later, in October 2011, state Board of Education Chairman William Harrison told his colleagues, without asking for a vote, that the board would not consider virtual school applications for the academic year starting in fall 2012.

In other words, the Board of Education, whose members are chosen by North Carolina’s executive branch of government, never bothered to advise its Department of Public Instruction how to execute a law established by the state’s legislative branch and signed by the governor. It simply ignored a law it didn’t like.

A month after Harrison made his statement, a nonprofit group called NC Learns Inc. asked the Cabarrus County school board for permission to base the online school in its district, even though the online school would enroll students from anywhere in the state and would turn over management to the for-profit K12 Inc. The Cabarrus board gave its approval, as it was empowered to do by law (local school boards, the University of North Carolina, and the state Board of Education can serve as charter authorizers in the Tar Heel State).

But no matter who gives preliminary approval, the state board makes the final decision. So NC Learns submitted its application and the blessing from Cabarrus County to the board one day before a February 15, 2012, deadline. The board, however, never even considered the application. Harrison later told reporters that he wanted more information about funding formulas and the “quality of virtual charter schools” before making decisions about any virtual school.

NC Learns fought the decision in administrative court and received a welcome decision from a judge last May. The state board’s inaction, the administrative judge wrote, was “arbitrary, capricious, and without valid basis in law, rule, policy, process, or fact.” Not to be outdone, the board fired back and got as many as 90 of the state’s 115 school districts to back its appeal.

All over a school that would have served 6,500 of the state’s 1.5 million students in grades K through 12.

One can argue that an online academy serving students statewide should have gone first to the state board. Given the statements from the board chairman, and given how tightly bound he was with local school boards during the legal challenge, one can guess the outcome of that strategy. Regardless, NC Learns followed the law. What it got in return was Judge Penn’s ruling that, while the state board should have considered the application, it already said in October 2011 that it wouldn’t consider any virtual charter schools for 2012.

Moreover, Penn wrote, the Cabarrus County school board doesn’t have the experience or wherewithal to review a charter application like this. Never mind that an elected legislature gave precisely that power to Cabarrus and every other local school board in the state.

It would have been one thing if the state board had argued, and Judge Penn decided, whether the legislature’s action was constitutional, rather than basing the decision on the appropriate powers of the state board or on the timing of one charter application. Other branches of government seem willing to ignore the relevant actions of another. This is lazy governance, at best. And charter innovation suffers for it.

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